IN THE COURT OF CRIMINAL APPEALS

OF TEXAS
NO. AP-77,054

RODNEY REED, Appellant

v.
THE STATE OF TEXAS
ON DIRECT APPEAL IN
CAUSE NO. 8701 FROM THE 21ST DISTRICT COURT
BASTROP COUNTY
K ELLER, P.J., filed a dissenting opinion.
In recommending that appellants motion for DNA testing under Chapter 64 be denied, the
trial court found that appellant failed to satisfy two of the statutory requirements. The Court,
however, remands for the trial court to make findings on four other statutory requirements. Because
the trial courts findings are sufficiently supported and those findings are, with respect to either of
the two statutory requirements that were addressed, sufficient to deny relief, I see no point in
remanding this case for further findings.
I. BACKGROUND

REED DISSENT 2
A. General Chronological Background
Stacey Stites was sexually assaulted and murdered over twenty years ago, on April 23, 1996.
The facts of the case are recited in detail in our opinion on direct appeal and in an opinion on
appellants second subsequent habeas application.1 DNA evidence revealed that appellants intact
sperm was found inside the victim, which indicated that he had sexual intercourse with her shortly
before her death.2 In rejecting a factual sufficiency claim on direct appeal, we observed that the
DNA evidence connected appellant to the sexual assault, and the forensic evidence indicated that the
person who sexually assaulted the victim was also the person who killed her.3
Appellant was tried and convicted of the capital murder of Stites in May of 1998. After we
affirmed the conviction on direct appeal in 2000, appellant filed six state habeas applications, the
last three of which were disposed of in 2009.4 Appellant also pursued remedies on federal habeas,
and the denial of relief in the federal system was ultimately upheld by the Fifth Circuit on January
10, 2014.5 On April 8, 2014, the State filed a motion to set an execution date. On July 14, 2014, a
hearing was held to set an execution date. On that date, shortly before the hearing, appellant had
filed a motion for DNA testing. Relying upon his motion and the States agreement to test some

See Reed v. State, No. AP-73,135 (Tex. Crim. App. Dec. 6, 2000) (not designated for
publication); Ex parte Reed, 271 S.W.3d 698, 701-12 (Tex. Crim. App. 2008).
2

See Reed, 271 S.W.3d at 705.

Id. at 712 (quoting from our direct appeal opinion).

See Ex parte Reed, No. WR-50,961-04 and WR-50,961-05 (Tex. Crim. App. January 14,
2009) (not designated for publication); Ex parte Reed, No. WR-50,961-06 (Tex. Crim. App. July 1,
2009) (not designated for publication).
5

See Reed v. Stephens, 739 F.3d 753 (5th Cir. 2014).

REED DISSENT 3
items for DNA, appellant requested that no execution date be set. The State requested an execution
date of January 14, 2015, which would give appellant six months to litigate any issues. In
accordance with the States recommendation, the trial court set the execution date for January 14,
2015.
In November 2014, a hearing was held on appellants DNA motion. At the end of the
hearing, the trial court stated that this motion was filed untimely and calls for unreasonable delay,
that theres no reasonable probability the defendant would not have been convicted had the results
been available at the trial of the case. At the States request, however, the trial court reset the
execution date to March 5, 2015. On December 2, 2014, appellant requested a subpoena to obtain
a personal reference sample for the purpose of the DNA testing that had been agreed to on July 14,
2014.
B. Trial Courts Findings
On December 16, 2014, the trial court filed findings of fact and conclusions of law. These
findings are extensive and amplify the trial courts two overarching bases for denying relief. The
findings are also supported by the record.
1. Delay
With respect to the first basisthat the DNA motion was made for the purpose of
unreasonably delaying the execution of sentencethe trial court pointed to thirteen factors in support
of its conclusion. First, the trial court stated that appellant had not provided the court with any
information regarding time estimates for the extensive DNA testing he seeks. Second, the trial
court observed that appellant filed his Chapter 64 motion on the day [the trial court] initially set the

REED DISSENT 4
[appellants] execution date. The trial court believed that the timing of the Chapter 64 filing was
not coincidental but a designed tactic to delay the setting of [appellants] execution date and, when
combined with appellants failure to propose concrete timelines was indicative of a repeated
desire to infinitely delay his execution date.
Third , the trial court pointed out that appellants DNA motion was filed thirteen years after
Chapter 64s enactment and approximately three years after Chapter 64s most recent amendment.
The trial court remarked that there was no legal impediment to filing a Chapter 64 motion during
this entire period and pointed out that appellant has been continuously represented by counsel
during his postconviction proceedings. Fourth, the trial court explained that appellants first
informal request for DNA testing occurred three days after the Fifth Circuit upheld the denial of
relief in the federal systemindicating that appellant only sought DNA testing after his other
efforts at relief proved unsuccessful.
Fifth, the trial court pointed out that appellants counsel had represented Larry Swearingen
and that appellants motion for DNA testing was similar to Swearingens. Consequently, the trial
court concluded that appellants counsel had the legal and factual knowledge to file [appellants]
present Chapter 64 motion more than a year before it was filed.
Sixth, the trial court pointed to appellants proceedings in other courts as showing his intent
to delay. The trial court observed that appellant has been cited for abuse of the writ on five separate
occasions by the Court of Criminal Appeals. Moreover, the United States District Court for the
Western District of Texas had ruled that appellant had untimely sought forensic testing and was
dilatory in submitting an affidavit. And the trial court cited the Fifth Circuit as also finding that

REED DISSENT 5
appellant submitted evidence in an untimely fashion. The trial court concluded these proceedings
show that appellant has engaged in a dilatory and piecemeal litigation strategy throughout his
postconviction proceedings and that his DNA motion is a continuation of such behavior.
Seventh, the trial court observed that appellant has thrice asked the Court to indefinitely
postpone his execution date. The court concluded that appellants requests for, essentially,
indefinite stays works against him in proving that he is not attempting to unreasonably delay his
execution.
Eighth, the trial court remarked that, at the live evidentiary hearing on the DNA motion,
appellant asked for DNA testing on a substantial amount of evidence that he had not mentioned in
his Chapter 64 motion. The trial court considered these last-minute amendments to his Chapter
64 pleadings to be yet another example of dilatory tactics.
Ninth, the trial court found appellants explanation for these amendmentsthat he learned
of the existence of certain items for the first time from the States inventory in response to the DNA
motionto be inadequate because one of the items had been heavily litigated during prior
postconviction proceedings and other items that were supposedly revealed for the first time in the
States inventory had been referred to in appellants DNA motion.
Tenth, the trial court observed that appellant possesses extracts from some of the evidence
for which he seeks testing. The court concluded that appellants request to test these items via
Chapter 64 when he could conduct the testing himself, especially given his offer to pay for DNA
testing, also supports the trial courts conclusion that the request is for the purpose of unreasonable
delay.

REED DISSENT 6
Eleventh, appellant has also requested testing of items the State has already agreed to test.
This request for redundant testing was also seen by the trial court as an attempt to unreasonably
delay execution.
Twelfth, the trial court pointed to the fact that appellants counsel had repeatedly stated, in
pleadings and in court, that he plans to soon file postconviction motions for relief pursuant to
Articles 11.071 and 11.073, but despite this promise of diligence, applicant has not filed either
pleadings.
Finally, the trial court remarked that applicant waited more than four months to obtain a
subpoena for a reference sample from himself for purposes of the agreed-to DNA testing.
2. Probability of Conviction
With respect to the second overarching basis for denying reliefthat appellant has not
shown by a preponderance of the evidence that he would not have been convicted but for exculpatory
results from DNA testingthe trial court pointed to three factors in support of its conclusion. First,
the trial court observed that the States case on guilt-innocence was strong. Appellants DNA was
found both on and inside the victim, his sperm was intact in the vaginal cavity, and his saliva was
on the victims breasts. The peri-mortem injury to the victims anus, the victims bunched up
panties, a broken pants zipper, the victim being partially unclothed, and bruises on the victims arms,
torso, and head were obvious signs of sexual assault and showed that the victim did not consent to
sexual activity. Other evidence showed that appellant frequented the area of the victims
disappearance at the time the victim disappeared and matched the height of someone who would
have fit the adjusted seat in the victims truck.

REED DISSENT 7
Second, the trial court remarked that many of the items appellant seeks to test were already
before the jury and the jury knew they did not match him. For example, the trial court explained,
a DNA and forensics expert testified that one of the hairs that appellant seeks to test did not match
his genetic profile. A Department of Public Safety forensics expert testified that none of the hairs
collected from the victims body microscopically matched appellants hair. And appellants
fingerprints did not match any of the fingerprints collected during the course of the investigation.
Third, the trial court found that none of the evidence Reed seeks to test was so integral to
the States case that the jury would have acquitted despite knowing that [Reeds] DNA was not on
the item. The court pointed to the fact that many of the items were in a truck shared with the
victims fianc and evidence demonstrated that other people had ridden in the truck. Moreover,
many of the items have been handled by ungloved individuals. At best, the trial court concluded,
exculpatory results would merely muddy the waters, not prove by a preponderance that he would
have been acquitted.
II. ANALYSIS
In several contexts, we have held that a court need only address issues that are sufficient to
dispose of the case.6 Courts on appeal, this Court on habeas, and trial courts on habeas may all
decline to address an issue that is not necessary to the disposition of the case because of the courts
disposition of some other issue.7 If, for example, a court grants relief to a habeas applicant on one
ground, it may decline to reach other grounds for relief, as long as the unreached grounds would not

Ex parte Reyes, 474 S.W.3d 677, 680-81 (Tex. Crim. App. 2015).

Id.

REED DISSENT 8
afford greater relief.8
The same principle applies here. There are a number of requirements that must be satisfied
in order for a convicted person to be entitled to DNA testing under Chapter 64.9 The failure to meet
any one of these requirements is fatal to a defendants claim under the statute.10 The trial court
concluded that appellant failed to satisfy two of the statutory requirements for obtaining DNA
testing. If the trial court is correct as to either of the two requirements, then it need not address
whether appellant has satisfied other requirements.11
An appellate court should remand a case when the trial courts erroneous action or failure
or refusal to act prevents the proper presentation of a case to the appellate court.12 We are now in
a position to determine whether the trial courts reasons for denying testing are correct. If either of
the trial courts two bases for denying relief are correct, there is no erroneous action or failure or
refusal to act that would serve as a basis for a remand. A remand might well provide further
ammunition for a denial of relief, but if either of the trial courts conclusions is correct, further
conclusions would not change the outcome of this appeal.

Id.

See TEX . CODE CRIM . PROC. art. 64.03(a).

10

Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002) (a court must order testing only
if the statutory preconditions are met).
11

The trial court could have chosen to address more than two requirements, but it was not
obligated to do so; indeed, the trial court did more than it had to by addressing two.
12

See Tex. R. App. P. 44.4(a) (A court of appeals must not affirm or reverse a judgment
or dismiss an appeal if (1) the trial courts erroneous action or failure or refusal to act prevents the
proper presentation of a case to the court of appeal; and (2) the trial court can correct its action or
failure to act.)

REED DISSENT 9
In any event, this is not a difficult case. The trial court has given numerous record-supported
reasons for its conclusion that appellant has failed to show that the DNA motion is not made to
unreasonably delay the execution of sentence or administration of justice.13 Appellant waited over
thirteen years after the passage of Chapter 64 to file a DNA motion and nearly seven years after it
was last amended.14 He had time to file six habeas applications with this Court but not to file a
single motion for DNA testing. He filed his DNA motion only after his other legal avenues were
exhausted and after the State sought to set his execution date. He has given no timeframe for when
testing might be complete and he has sought to test a large number of items. He has been cited for
untimely submitting matters in federal court,15 and he has been dilatory in connection with his DNA
motion even after it was filedbroadening the scope of his testing requests in the evidentiary
hearing beyond what was originally sought in his motion, taking four months to even start the
process of submitting his own reference sample, and continually seeking to indefinitely postpone his
execution date.
This is not the conduct of a convicted person who knows he is innocent and thinks that DNA
testing will prove it. Nor is it the conduct of a defense team who has any reason to believe the
convicted person is innocent and thinks that DNA testing would prove it. This is the conduct of a
defense team that realizes there is no hope of exoneration and is simply trying to delay the inevitable

13

See TEX . CODE CRIM . PROC. art. 64.03(a)(2)(B).

14

The statute has been amended since applicant filed his motion. See Acts 2015, 84th Leg.,
ch. 70 (S.B. 487), 2, eff. Sept. 1, 2015; Acts 2015, 84th Leg., ch. 1276 (S.B. 1287), 11, eff. Sept.
1, 2015.
15

See Reed v. Stephens, 739 F.3d 753, 768 n.5, 776 n.12.

REED DISSENT 10
execution.
And then there is the trial courts second basis for denying relief: that appellant has not
shown by a preponderance of the evidence that, had exculpatory DNA results been obtained, he
would not have been convicted.16 The trial courts supporting reasons for this basis are not nearly
as numerous as for the first basis but they do not have to be. Appellant was tied to this murder by
DNA testing: his sperm was found inside the victim. That sperm was intact, indicating that appellant
had sex with the victim at a relatively short time before the murder. The forensic evidence shows
that the rapist was the murderer and the DNA evidence shows that appellant was the rapist.
Appellants only answer to the presence of his own sperm in the victim is to advance the
theory from his own interested witnesses that he had some prior relationship with the victim and so
the sex might have been consensual. In proceedings in federal court, Judge Lee Yeakel effectively
answered this contention by explaining that none of applicants evidence was reliable:
Without reliable evidence demonstrating how this happened consensually, the DNA
evidence effectively condemns Reed. And what evidence is there of a prior
relationship? Statements of people who claim to have seen the two together. Yet,
many of these are the very sort of eyewitness accounts that have been shown in
numerous cases to be unreliable. Most of these witnesses did not know Stacey Stites,
and identified her from memory by viewing her photograph. Those who claimed to
have known her were proven to be badly mistaken. All of these witnesses were
family, friends, or associates of Reeds. Reed was never able to identify anyone who
was a friend, family member, or associate of Stacey Stites who claimed to have been
aware of a relationship between Reed and Stites. In short, there is no reliable
evidence that ties Reed to Stites before her murder.17
Without reliable evidence that appellant had a prior relationship with the victim, DNA evidence

16

See TEX . CODE CRIM . PROC. art. 64.03(a)(2)(A).

17

Reed v. Thaler, 2012 U.S. Dist. LEXIS 83422, *133 (W.D. Tex. June 15, 2012).

REED DISSENT 11
pointing to the involvement of another individual would not exonerate appellant because it would
show nothing more than there was another party to the crime, at best.18
Appellant is not entitled to DNA testing. We do not need a remand to arrive at that
conclusion. Because the Court remands this case when doing so is unnecessary, I respectfully
dissent.
Filed: June 29, 2016
Do Not Publish

18

Wilson v. State, 185 S.W.3d 481, 485 (Tex. Crim. App. 2006).